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TMI Blog2011 (2) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... e withholding the payment of excise duty to the Union of India - Decided in favor of the assessee - 11282 of 2005 - - - Dated:- 28-2-2011 - Sheema Ali Khan, J. S/Shri Bibhuti P.D. Pandey, Sr. Advocate, Ranjit K. Das and Rohitabh Das, Advocates, for the Petitioner. S/Shri Jharkhandi Upadhyay, A.P.P., P.L. Jaiswal, CGC and Mrs. Nivedita Nirvikar, Sr. SC, for the Respondent. [Order]. The petitioner is aggrieved by the order dated 20-11-2004 by which the learned Special Judge, Economic Offences, Patna has refused the application for discharge under Section 245 of the Code of Criminal Procedure for the offences allegedly to have been committed under Section 9(1)(b)(c)(d) of the Central Excise Act, 1944 (earlier known as C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional amounts received by the assessee, will require to be included in the wholesale price and not in the assessable value, for the purpose of charging Central Excise duty under the provisions of Rule 5 of the erstwhile Valuation Rules, 1975. Since the said demand had surfaced only due to addition of additional amount in the assessable value itself, instead of adding to whole sale price, the said demand i.e. demand for Rs. 8,29,10,883.25/- is not maintainable and sustainable on merit itself. It has to be therefore, dropped. There are no other points or issues of stake which need findings and determination of money value in whole sale price of the cigarettes for the relevant period and recovery of the differential duty is concerned, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the marketing penalty laid down under Rule 4(1) which is spelt out under the various sub-rules of Section 4 in accounting for the price of the sold item. It is alleged that the accused manufactured the price structure of the cigarette in the factory at Munger with a view to lower the assessable fine and evade central excise duty by showing some portion of the price as post manufacturing cost and post manufacturing profit and some portion as expenses incurred by the so called wholesale dealers. The petitioners challenged the demand made on behalf of the Central Excise and in appeal under Section 35A of the Central Excise Act, the order by which the demand was made, was not substantiated. The Commissioner has held that in fact there was no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the subsequent years, the demand was increased over period to time. Ultimately, the demand raised was dropped on the ground that it was not taxable and the calculation had not been correctly made. 7. Once, the authority, who is competent to raise a demand, comes to a conclusion that there has been a miscalculation by the authority or that the excise duty to the tune of Rs. 8,29,10,883.29/- is not chargeable and the entire payment has been dropped, it cannot be said that the petitioner would be charged with the criminal intention of deliberate withholding the payment of excise duty to the Union of India. 8. In the result, the impugned orders refusing to discharge the petitioners in Complaint Case Nos. 151C of 1995, 152C of 1995, 153C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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